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Unions to pay portion of legal bill for delaying open-records request

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Unions to pay portion of legal bill for delaying open-records request

  • Judge says newspaper’s burden of enforcing Public Records Act makes award of attorneys fees against nongovernmental party appropriate.

June 19, 2003 — A state agency and four unions representing its employees must pay more than $42,000 in attorney’s fees to a Walnut Creek, Calif., newspaper that prevailed on an open records claim, a superior court judge ruled Tuesday.

The ruling is likely the first in California to impose legal fees on a party other the government in an open records lawsuit, Contra Costa Times‘ attorney Karl Olson said.

“You always get fees against the government if you win,” Olson said. “But this case certainly had a very different twist. We didn’t sue the government. The union sued the state and us to block the release of the records.”

The state Department of Health Services agreed to release hundreds of employee disciplinary records to the Times, but the department notified its employees first. The unions’ privacy lawsuit that ensued delayed the release of the records requested in April 2002 until early this year. The newspaper filed a counter-petition to the privacy suit under the California Public Records Act seeking disclosure of the records and attorney’s fees.

Sacramento Superior Court Judge Talmadge Jones ruled in January that the open records law overrides the state employees’ privacy concerns.

The newspaper requested the disciplinary records after the health department fired a chief inspector of medical facilities who was later arrested on charges of child pornography and pled guilty to misuse of a state computer.

Jones’ order this week divides the newspaper’s attorney fees between the health department and the California State Employees Association, the California Association of Professional Scientists, the Professional Scientists in California Government and the Association of California State Supervisors.

“This action has conferred a significant benefit on the public at large by vindicating the right of the press to investigate the manner in which state agencies conduct their business,” Jones wrote.

Jones’ ruling acknowledged that the open records law provides only for fees against a public agency, but ruled “the necessity and burden of private enforcement” by the newspaper made the award of fees appropriate.

Olson considers the ruling fair because the unions brought the privacy lawsuit and fought the hardest against disclosure of the public records.

The ruling has two significant aspects, Olson said. It sanctions the government for involving a third party in an open records request and warns nongovernmental parties of their liability for interfering with the public’s right to information, he said.

“With the privatization of things that had been government functions, you have private companies that fight public disclosure much harder than the government,” Olson said. “It’s tremendously important to send a message that if they want to get out there and fight against public disclosure, they are going to have to pay for it.”

(California Association of Professional Scientists v. Department of Health Services; Media counsel: Karl Olson, Levy, Ram & Olson, LLP, San Francisco) KH

© 2003 The Reporters Committee for Freedom of the Press

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